Welcome to this week’s issue of AI: The Washington Report, a collaborative effort between Mintz and ML Strategies, our government affairs affiliate. The rapid advancements in artificial intelligence (AI) and the resulting practical, legal, and policy issues have significantly increased the federal government’s interest in AI and its implications. Through these weekly reports, we aim to keep our clients and friends informed about the legislative, executive, and regulatory activities related to AI in Washington, D.C.
In this issue, we will discuss Biden’s upcoming executive order on AI, particularly his stance on the European Union’s (EU) AI Act. An unreleased State Department letter has highlighted concerns within the Biden administration regarding the regulatory approach taken by the EU. The EU’s AI Act adopts a risk-based approach, classifying different uses of AI according to their potential impact on health and safety or fundamental rights of individuals. Some uses are prohibited, while others face close scrutiny. The executive order, based on information from sources familiar with its drafting, is expected to rely on voluntary guidelines for testing and evaluating AI systems. This aligns with the Biden administration’s previous approach to AI regulation. The executive order will also address national security and workforce development concerns related to AI.
Biden’s forthcoming AI executive order was announced by the White House on July 21, 2023. The executive order aims to promote responsible innovation in AI and is set to be released in the coming months. President Biden has expressed his intention to take executive action and work with bipartisan legislation to position America as a leader in responsible AI innovation. The question arises as to whether the Biden administration will follow the EU’s model outlined in the AI Act or encourage the development of a unique American approach to AI regulation. A previously undisclosed document from the State Department suggests that the executive order may promote a different path for AI regulation compared to the EU’s standard.
While Congress has been discussing AI throughout the year, the EU has already made significant progress. In April 2021, the European Commission proposed the AI Act, which has been further developed through negotiations. The final version of the AI Act is expected by the end of the year, with full implementation likely in 2025 or 2026. The AI Act adopts a risk-based approach, regulating different uses of AI based on their potential impact on health, safety, or individual rights. Some uses are banned, while others face specific restrictions and transparency obligations.
The Biden administration’s position on the EU’s AI Act can be characterized as a qualified disagreement. A document drafted by US government officials and sent to the European Commission highlighted concerns with the AI Act’s broad regulatory prescriptions. Another State Department letter, made public on October 6, 2023, criticized the AI Act, warning of potential negative effects on productivity, jobs, and investment in the EU. The document suggested revisions to certain provisions of the AI Act.
Based on the State Department letter and other critiques from the Biden administration, it seems that the forthcoming executive order will propose a regulatory framework for AI that diverges from the emerging European model. Reports suggest that the executive order will rely on voluntary guidelines for testing and evaluating AI systems. This aligns with the Biden administration’s current approach. The executive order will also address national security concerns by requiring cloud computing firms to track entities developing certain AI models on their systems. Additionally, measures will be implemented to promote AI education, training, and talent recruitment.
Although the exact details of the executive order remain unknown, it is likely to differ significantly from the AI Act due to limitations on executive power and the Biden administration’s skepticism towards the EU’s approach to AI regulation. The executive order is expected to be released in the coming weeks, possibly by the end of October 2023. We will continue to monitor and analyze these developments and provide timely reports. To stay updated, subscribe to our newsletter.
